Public International Law: CML3231 University of Ottawa

Public International Law
University of Ottawa
Faculty of Law CML3231
Public International law

CML 3231
Slides from Introduction through to Sources of

International Law
Craig
Forcese
Craig
Forcese
Craig
Forcese
Craig
Forcese
Many International Legal issues in the Kazemi

Case:
Sovereignty
State responsibility
State protection of its nationals
International human rights
The role and law of international diplomacy
Economic trade sanctions
The United Nations and its agencies etc.
Craig
Forcese
Craig
Forcese
Iraq
Craig
Forcese
Main webpage: www.cforcese.ca

Course webpage: www.lawofnations.ca
Craig
Forcese
Courses and For-Credit Projects in International Law (2005 CCIL Survey)
Number of Courses/For Credit Projects 60
50
40
30
20
10
0
Manitoba
Laval
Moncton
Calgary
N.B.
Sask.
Sherbrooke
Victoria
Alberta
UWO
Windsor
Dalhousie
uOttawa (Civil Law)
Queen's
Montreal
McGill
Toronto
BC
Osgoode
UQAM
uOttawa (Common Law)
uOttawa (Total)
"uOttaw a (Common Law )"
single-counts courses offered
Craig in both French and English.
"uOttaw a (Total)" single-counts
Forcese courses offered both in the Civil
Law School
Craig
Forcese
Two major sections to the course:
1. “Procedural” – To whom does

international law apply and how is it
created?
2. “Substantive” – What is the content of
international law?
Craig
Forcese
Main webpage: www.cforcese.ca

Course webpage: www.lawofnations.ca
Craig
Forcese
Faculty of Law 3231A
Defining International Law “textually”:

• “International”: “pertaining to the relations between
nations”
• “Nation”: “a political state”
• “Law”: “body of rules, flowing from enactment or
custom, regarded as binding”
•Therefore, textually, “International Law” is the body of
rules flowing from formal “enactment” or from custom
pertaining to the relations between political states and
regarded as binding on those states
Craig
Forcese
Defining International Law
Implications of the “textual” definition for a discussion of

International Law’s origins along the historical timeline:
• Broadest definition too broad:
• International Law comprises the quasi-ritualistic
habits of behaviour between different peoples that
give some certainty to relations between these
peoples
Pre-history
Craig
Forcese Historical Timeline

• Slightly less broad definition still too broad:
• International Law is some sort of substantive code
of conduct governing relations between different
“peoples”
Roman conception of
“world city state” ruled by
natural law:
Antiquity or Cicero: “one eternal and
perhaps the unchangeable law will be valid
early Middle for all nations and all times, and
Ages there will be one master and
ruler, that is, God”
Craig

• Slightly less broad definition still too broad:
• International Law is some sort of substantive code
of conduct governing relations between different
“peoples”
Medieval Conception of
“Natural Law”:
Initially based on the
Antiquity or divine, and then on human
perhaps the reason
early Middle
Ages
Craig

• Pre-requisite for “textual” definition: the state
• “State” is “the body politic as organized for supreme
civil rule and government”
16th Century
Early
Modernity
Craig

16th Century Jean Bodin, Six livres de la

rėpublique
“Sovereignty”:
Early • State (in form of monarch)
Modernity is paramount over the people
• State is independent of
foreign rule
Craig

1625: Hugo Grotius, On the
17th Century Laws of War and Peace
“Law of Nations”: “the
law which has received
Early obligatory force from the
Modernity will of all nations, or of
many nations”
Craig

• Core notion at the heart of the conception
of the state at international law: sovereignty
• Sovereignty:
1. autonomy in foreign relations
2. exclusive competence in internal
Early affairs
Modernity
Craig

• Contradiction between “sovereignty” and a
“law of nations”?
Reformation and
• Why a system with this contradiction?
Wars of Religion
Early
Modernity
Craig

Reformation and
Wars of Religion
1618: Thirty
Early Years War
Modernity
Craig

Reformation and
Wars of Religion
1618: Thirty
Early Years War
Modernity
Craig 1648: Treaty of

Forcese Historical Timeline Westphalia

• Resolving the contradiction:
sovereign states, in their full
Early exercise of sovereignty, enter into a
Modernity contract with one another to limit
their sovereignty
Craig 1648: Treaty of

Forcese Historical Timeline Westphalia

• Classical conception of international law: states
consenting to rules governing international conduct
• Positivist conception of international law:
• empirical assessment of what states
consent to, not a normative assertion of
what the law should be
Dean Acheson: “The hell with

international law. It’s just a series of
precedents and decisions that have
been made in the past.”
Craig
Forcese

19th Century
By this period, natural

law mostly supplanted
by positivist conception
of consenting states
Craig

20h Century
Challenge to the
“classical”
conception?
Craig

American Exceptionalism 20h Century
Woodrow Wilson’s
Fourteen Points: Challenge to the
Emerging Notion of Self- “classical”
Determination: a blow to the conception?
“classical” conception?
Craig

Non-European 20h Century

participation in
International Law
after WWI Challenge to the
“classical”
conception?
Craig

United Nations: End of WWII

• Built on the notion
of sovereignty but
with strong counter- Challenge to the
sovereignty themes, “classical”
such as human conception?
rights
Craig

Human Rights: End of WWII

• international law that
governs how a state
treats human beings Challenge to the
• a natural law-like vision “classical”
that does not sit well with conception?
the “classical”
conception
Craig

• Is the state-centric classical conception still fully
accurate? Modernity
A “modern” definition of international law?:
“international law is the body of law
integrating the world as a whole into a
single world community, subject to the rule
of law”
Craig

Summary on the definition of
International Law:
• International law is the law of nations,
and is therefore a system of rules
regarded as binding on states in their
mutual relations
• International law is also a body of law
that increasingly regulates how states
act within their zone of traditional
sovereign authority
Craig
“Pseudo-theories” of International Law
First theoretical hypothesis:
1. Evolution of International Law

• A pattern of “punctuated equilibrium”?
• Slow evolution and then rapid
development after times of crisis
WWI WWII
Cold War
1618: Thirty
Years War
War on
Terror?
Craig
Relevance of International Law in International Politics
First question: What is international politics?

• Put simply, three different sorts of international politics
1. The Politics of Empire
2. The Politics of Feudalism
3. The Politics of the Anarchic State System
Craig
Forcese

• The Politics of the Anarchic State System
• In a Hobbesian state of nature, life is
“solitary, poor, nasty, brutish, and short.".
• In the anarchic state system, there is no
common ruler, and thus no common giver
and enforcer of laws
Craig
Forcese

• The Politics of the Anarchic State System as
Compared to the Domestic Political System
1. Political differences:
• Domestic politics: a single body –
government – has a monopoly on
the use of force
• International politics: no one body –
or state – has a monopoly on the
use of force
• Produces a system of “self-help”
Craig
Forcese

2. Social differences:
• Domestic politics: well-ordered
sense of common community and
values
• International politics: no common
values or sense of community
• Instead, the threat of use of
force produces a focus on state
Craig survival
Forcese

3. Legal differences:
• Domestic politics: law is generally
obeyed and there are sanctions
levelled for violations
• International politics: laws (it is said)
are often not obeyed, and there are
no real enforcement mechanisms (at
least against powerful states)
Craig
Forcese
Second question: How do international relations

scholars explain international politics?
1. Realists:
• Power politics lies at the core of international
politics
• States are all either in conflict or potentially in
conflict
• Pre-occupied with state security
Craig
Forcese Kennan Kissinger

2. Liberals:
• Broadly speaking, argue that a global society exists
alongside the anarchic state system, built on state
interdependence and inter-connectedness and
fostered by sub-state exchanges across borders
Craig
Forcese

• Evaluating the two views:
• In favour of realism, historically international politics has
been very much about power politics and the
aggrandizement of state power
• Order in international politics has been created by
the assertion of power by Great Powers (hegemons)
• In favour of liberalism:
1. State goals are not simply about survival and the
acquisition of power
• Economic relations, for instance, have become
elemental in international politics, and are often
fostered by cooperation, not conflict
Craig
Forcese

• Evaluating the two views:
• In favour of realism, historically international politics has
been very much about power politics and the
aggrandizement of state power
• Order in international politics has been created by
the assertion of power by Great Powers (hegemons)
• In favour of liberalism:
2. The implications of military power and
consequences of use of force have changed:
• Economic strength is not correlated always with
military strength
• Use of military force to settle dispute more
Craig difficult in era of nationalism and growing
Forcese unease with force
Third question: Does international law matter in

international politics?
Realists: Not really

Liberals: Yes
Craig
Forcese

Simple answer:
• Every day, in things as basic as international
postal and telecommunications services,
and international trade
Complex answer:
• International law matters because:
1. the decision-making elites in all states acknowledge
the existence of something called "international law"
2. international law provides a language for diplomacy
Craig 3. international law gives normative value to actions
Forcese and claims made by international actors
Relevance of International Law

War in Iraq: U.S. Efforts to Justify Actions

Using International Law
• Secretary of State Powell on Feb. 5,
2003
• Iraq’s non-compliance with
Security Council Resolution 1441
• Iraq could provide weapons to
terrorists, placing the United
States at grave risk
Craig
Forcese


• Security Council Resolution 1441

• Meaning of “material breach”
• US view that SC 1441 could be
used to justify action against Iraq
Craig
Forcese


• Self-Defence Notion
• Self-defense permissible in response to an
actual attack or when such an attack imminent
• US doctrine of pre-emptive self-defense: the
“Bush Doctrine”
• Consistent with international law?
• Will it change international law?
Craig
Forcese

A poor analogy: Traffic Rules
B
A
Craig
Forcese
“Pseudo-theories” of International Law
Second theoretical hypothesis:
2. Functions of International Law
• Stabilizing Purpose: Creating a system

faovuring deliberation and reason over raw
power to smooth international relations
• Normative Purpose: Fostering a better way

of international politics, by articulating
shared values
Craig
Forcese
Sources of International Law
• International Law built on the notion of sovereign states

• The notion of sovereignty at the heart of International law is
hostile to the notion of a supra-national entity making
international law
• International Law typically (though not always) about looking
for evidence of state consent (e.g., treaties)
The S.S. Lotus (1927, P.C.I.J.):
“The rules of law binding upon States … emanate from their

own free will as expressed in conventions or by usages
generally accepted as expressing principles of law…
Restrictions upon the independence of States cannot
therefore be presumed.”
Craig
Forcese
Statute of the International Court of Justice, Article 38:

• The sources of international law that may be applied
by the ICJ are:
1. International conventions
2. International custom
3. General principles of law
4. Judicial decisions and the teachings of the most
highly qualified publicists
Craig
Forcese
Sources of International Law: Treaties
Article 38 of the ICJ Statute:

“international conventions, whether general or particular,
establishing rules expressly
expressly recognized
recognized by the contesting states”
Treaties:
• Also called conventions, covenants, statutes, acts, charters,
agreements, etc.
• Generally only binding on state parties (subject to certain
exceptions)
Craig
Forcese
Treaties: Issue 1: Preliminary Observations

• Comment 1: There is no magical form or format for a
treaty; the focus is on intent to be bound
• Eastern Greenland Case
• Qatar v. Bahrain Maritime Delimitation Case
• Comment 2: The rules of treaty law in international
law have evolved over time; concept of intertemporal
law
• Passage over Indian Territory Case
• Comment 3: An agreement between a state and a
non-state actor (other than an international
organization) will not be an international treaty
Craig • Anglo-Iranian Oil Case
Forcese

Creating Treaties
• Vienna Convention on the Law of Treaties
Article 2
A “treaty” is an international agreement

concluded between states in written form and
governed by international law
Article 6: Capacity of States to conclude treaties
Every State possesses capacity to conclude treaties
Craig
Forcese

Creating Treaties
“Classic” Stages in Creating a Multilateral
Treaty
1. Accrediting persons to conduct

negotiations on behalf of each state
2. Negotiating the text
3. Adopting the text of a treaty
4. Authentication of that text and
signature
5. Ratification, if necessary
6. Any accessions
7. Entry into force
8. Registration and publication
Craig
Forcese Process, of course, subject to modification
by states

Creating Treaties
1. • Vienna Convention on the Law of Treaties
Accrediting
persons to Article 7: describes who can express (a) the intent to be
conduct bound on behalf of a state and represent the state for the (b)
negotiations purpose of authenticating and (c) adopting the text
on behalf of
each state Concept of “Full powers”
Article 2: a document emanating from the competent
authority of a State designating a person or persons to
represent the State for negotiating, adopting or
authenticating the text of a treaty, for expressing the
consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty
Craig
Forcese

Creating Treaties
Accrediting
persons to Article 7: describes who can express (a) the intent to be
conduct bound on behalf of a state and represent the state for the (b)
negotiations purpose of authenticating and (c) adopting the text
on behalf of
each state Presumptive “Full powers”
Article 7:
(a) Heads of State, Heads of Government and Ministers
for Foreign Affairs, for
for all
all purposes;
purposes
(b) heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the accrediting
State and the State to which they are accredited;
accredited
(c) representatives accredited by States to an
international conference or to an international
Craig organization, for the purpose of adopting the text of a
Forcese treaty in that conference, organization or organ
organ.
RECAP
Creating Treaties
Accrediting
persons to Example of a Canadian Full Powers Document
conduct
negotiations "I _______, Minister of Foreign Affairs in the Government of
on behalf of Canada, do hereby certify that ___________ is vested with
each state Full Powers and Authority to sign, on behalf of the
Government of Canada, the [Name of Treaty].
In witness thereof, I have signed and sealed these presents

at, this ____ day of (month and year)
Minister of Foreign Affairs.
Craig
Forcese

False “Full Powers”
Accrediting
persons to
conduct 1. Article 46 – on domestic law competence to conclude
negotiations
treaties
on behalf of
each state 2. Article 51 – coercion of representative
3. Article 50 – corruption of representative
Craig
Forcese

Creating Treaties
Negotiating
the text of No set formula
the treaty
Complicated multilateral treaties usually negotiated,
ultimately, in large diplomatic conferences
1989: United Example of the Statute of Rome, creating the
Nations International Criminal Court:
General
Assembly 1994: 1995: the Ad 1996-98: Preparatory 1998:
request to International Hoc Committee Committee on the Rome
the Law on the Establishment of an diplomatic
International Commission Establishment of International Criminal conference
Law completes an International Court to prepare a to adopt
Commission its work on Criminal Court widely acceptable final text
the draft meets twice consolidated draft
Statute text
Craig
Forcese
Historical Timeline

Creating Treaties
3. Adopting • Vienna Convention on the Law of Treaties
text
Article 9: The adoption of the text
of a treaty takes place by the
consent of all the States except a
treaty at an international A B
conference is adopted by the vote
of two-thirds of the States present
and voting, unless by the same
majority they shall decide to apply
a different rule C
F
States favouring
adoption
E D
4 of 6 = 2/3 vote = adoption
Craig
Forcese

Creating Treaties
4.
Authenticating
and signing Article 10: The text of a treaty is
established as authentic by such
procedure as may be agreed upon
by the States or, otherwise, by the A B
signature (and variants thereof)
C
F
States signing treaty
E D
Craig
Forcese

Creating Treaties
4.
Authenticating
and signing Article 12: A State consents to be
bound by the signature of its
representative when: (a) the treaty
so provides; (b) the States so A B
agreed; or (c) the intention of the
State to give that effect to the
signature appears from the full
powers of its representative or
was expressed during the C
negotiation.
F
E D
Craig
Forcese Potential treaty relationship Where signature suffices to signify
upon entry into force intent to be bound

Creating Treaties
5. Ratification
Article 11: The consent of a State
to be bound by a treaty may be
expressed by signature, exchange
of instruments constituting a A B
treaty, ratification,
ratification acceptance,
approval or accession, or by any
other means if so agreed.
• In practice, multilateral
conventions usually C
require “ratification”
F
E D
Craig

Creating Treaties
5. Ratification
to be bound by a treaty is
expressed by ratification when: (a)
the treaty so provides; (b) the
States so agree; (c) treaty signed
A B
subject to ratification; or (d)
intention to sign treaty subject to
ratification appears from the full
powers.
C
F
E D
Craig

Creating Treaties
5. Ratification
expressed by ratification when: (a)
States so agree; (c) treaty signed
A B
subject to ratification; or (d)
intention to sign treaty subject to
ratification appears from the full
powers.
C
F
Potential treaty relationship
E D
upon ratification and entry into
Craig force
Forcese Potential treaty relationship Where ratification required to signify

Creating Treaties
5. Ratification
Concept of Ratification:
some additional process
determined by the constitutional
requirements of individual A B
states required before a treaty
becomes binding on the state
C
F
States ratifying treaty
E D
Craig force
Forcese Potential treaty relationship Where ratification required to signify

Creating Treaties
6. Accessions
expressed by accession when: (a)
States so agreed; or (c) all the
A B
parties have subsequently so
agreed G
C
F
States acceding to treaty
Potential treaty relationship E D
Craig
force Where ratification required to signify
Forcese Potential treaty relationship intent to be bound
upon entry into force

Creating Treaties
7. Entry into
force
Obligations pending entry into
force:
Article 25: May be provisional
application of treaty
Article 18: Obligation of ratifying
A B
states not to
defeat object and G
purpose
C
F
Craig
force
Forcese Potential treaty relationship upon entry
into force + Article 18(2) obligations

Creating Treaties
7. Entry into
force
Article 24: A treaty enters into
force in such manner and upon
such date as it may provide or as
the negotiating States may agree.
Otherwise, a treaty enters into
A B
force when all the negotiating
states have consented to be G
bound
C
F
E D
Craig upon ratification
Assume that treaty requires 5 parties
Forcese Treaty relationship (I.e., ratifications or accessions) for
entry into force

Creating Treaties
7. Entry into
force
In this scenario is country E
bound by the treaty?
North Sea Continental Shelf Case:
it is not lightly to be presumed that
a State which has not carried out A B
these [consent to be bound]
formalities [in a treaty] … has G
nevertheless somehow become
bound in another way.
C
F
E D
entry into force

Creating Treaties
7. Entry into
force
What then is the “worth” of country E’s signature?
Article 18: A signatory state
is obliged to refrain from acts
which would defeat the A B
object and purpose of a
treaty when until it shall have
made its intention clear not to G
become a party to the treaty
C
F
E D
Craig upon ratification + Art. 18 duties
entry into force

Creating Treaties
7. Entry into
force
• Example of the Statute of Rome, creating the
International Criminal Court
Article 125
Signature, ratification, acceptance, approval or accession
2. This Statute is subject to ratification, acceptance or approval by

signatory States.
Craig
Forcese

Creating Treaties
7. Entry into
force
Article 126
Entry into force
1. This Statute shall enter into force on the first day of the month
after the 60th day following the date of the deposit of the 60th
instrument of ratification, acceptance, approval or accession with the
Craig Secretary-General of the United Nations.
Forcese

Creating Treaties
7. Entry into
force
• Bush Administration opposition
• Yet, between December 31,
2000 to May 6, 2002, it was
under an Article 18 obligation
"This is to inform you, in connection with the Rome Statute of the

International Criminal Court adopted on July 17, 1998, that the
United States does not intend to become a party to the treaty.
Accordingly, the United States has no legal obligations arising from its
signature on December 31, 2000. The United States requests that its
Craig intention not to become a party, as expressed in this letter, be reflected in
Forcese the depositary's status lists relating to this treaty."

Creating Treaties
7. Entry into
force
So-called “withdrawing” of a signature
Article 18(a): “make its
intention clear not to become
a party to the treaty” A B
G
C
F
upon ratification + Article
Craig
18(1) obligations Assume that treaty requires 5 parties
Forcese (I.e., ratifications or accessions) for
Treaty relationship
entry into force

Creating Treaties
7. Entry into
force
So-called “withdrawing” of a signature
Article 18(a): “make its
intention clear not to become
a party to the treaty” A B
G
C
F
upon ratification but no Article
Craig
18(1) obligations Assume that treaty requires 5 parties
Forcese (I.e., ratifications or accessions) for
Treaty relationship
entry into force

Creating Treaties
8. Registration
and
publication
Article 80: Treaties shall, after their entry into
force, be transmitted to the Secretariat of the
United Nations for registration or filing and
recording, as the case may be, and for
publication.
• UN Charter
Article 103: Every treaty and every international
agreement entered into by any Member of the
United Nations … shall as soon as possible be
registered with the Secretariat and published by it.
No party to any such treaty or international
agreement which has not been registered … may
Craig invoke that treaty or agreement before any organ
Forcese of the United Nations

Creating Treaties
Concept of
Reservations
Reservations
• Derogation from a provision or provisions of the treaty

• Both consistent and inconsistent with the notion of
state consent
Article 2: “reservation” means a unilateral

unilateral statement,
statement
however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty,
whereby it purports
purports to
to exclude
exclude or
or to
to modify
modify the
the legal
legal effect
effect of
certain provisions of the treaty in their application to that
State
Craig
Forcese

Creating Treaties
Reservations
• International Court of Justice, Reservations to the

Convention on Genocide Case (1951)
Example of reservations: Burma

(Myanmar): Article 8 does not apply to it:
“Any Contracting Party may call upon the
…United Nations to take such action under
the Charter of the United Nations … for the
prevention and suppression of acts of
genocide or any of the other acts enumerated
Craig in article III.”
Forcese

Creating Treaties
Reservations
• International Court of Justice, Reservations to the

Convention on Genocide Case (1951)
Question 1: Is a state party if its reservation
is objected to?
• Yes, so long as the reservation is
consistent with the object and purpose
of the Convention
Question 2: What is the legal effect of the
reservation?
Craig • If a party objects, it is free to treat the
Forcese reserving state as a non-party

Creating Treaties
Concept of
Reservations
Article 19
Formulation of reservations
A State may … formulate a reservation unless:
(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations,
which do not include the reservation in question, may
be made; or
(c) in cases not falling under sub-paragraphs (a) and
(b), the reservation is incompatible with the object and
Craig purpose of the treaty.
Forcese

Creating Treaties
Concept of
Reservations
• When is a reservation incompatible with the object and

purpose of the treaty?
• No single answer
• Treaty may specify
• May apply mathematical formula (e.g.
International Convention on Elimination of All
Forms of Racial Discrimination)
• Note also concept of jus cogens: principles
from which there can be no derogation
(peremptory norms) (Article 53)
Craig
Forcese

Creating Treaties
Concept of
Reservations
Article 20
Acceptance of and objection to reservations
2. When it appears from the limited number of the

negotiating States and the object and purpose of a treaty
[requires] … consent of each one to be bound by the treaty,
a reservation requires acceptance by all the parties.
4. (b) an objection by another contracting State to a

reservation does not preclude the entry into force of the
treaty as between the objecting and reserving States unless
a contrary intention is definitely expressed by the objecting
Craig
State
Forcese

Creating Treaties
Concept of
Reservations
Article 21
Legal effects of reservations and of objections to
reservations
1. A reservation established with regard to another party in

accordance with articles 19, 20 and 23:
(a) modifies for the reserving State in its relations with
that other party the provisions of the treaty to which the
reservation relates toto the
the extent
extent of
of the
the reservation
reservation; and
(b) modifies those provisions to the same extent for
that other party in its relations with the reserving State.
Craig
2. The reservation does not modify the provisions of the
Forcese
treaty for the other parties to the treaty inter se.

Creating Treaties
Concept of
Reservations
One of the Terms of the 100.00%
80.00%
Original ABC Trade
60.00%
Agreement: “each country 40.00%
reduces eliminates tariffs on A 20.00%
the widgets of the other” 0.00%
C Goods B Goods
100.00%
80.00% 100.00%
60.00% 80.00%
40.00% 60.00%
20.00% 40.00%
0.00% 20.00%
A Goods B Goods
0.00%
C Goods A Goods
Craig
C B
Forcese
Assume that treaty enters into force when all three states ratify

Creating Treaties
Concept of
Reservations
C Ratifies with a 25.00%
20.00%
reservation: “the provision in
15.00%
relation to tariffs on widgets 10.00%
does not apply to us” A 5.00%
0.00%
C Goods B Goods
25.00%
20.00%
25.00%
15.00%
20.00%
10.00%
15.00%
5.00%
10.00%
0.00%
A Goods B Goods 5.00%
0.00%
C Goods A Goods
Craig
C B
Forcese
Assume that treaty enters into force when all three states ratify

Creating Treaties
Concept of
Reservations
E ratifies with
reservation:
1. reserving states are
bound to the treaty, but
A B
only as modified by their
reservations in respect to G
non-reserving and non-
objecting states C
F
E D
Forcese Full Treaty relationship Treaty relationship changed
by reservation

Creating Treaties
Concept of
Reservations
E ratifies with We
reservation: Object!
2. reserving states are No
not bound by the treaty
A B treaty
at all in relation to states for you!
who object to the G
reservation and specify
that treaty is not to enter C
into force between them
F
E D
by reservation

Creating Treaties
Concept of
Reservations
F accedes with
reservation:
3. reserving states are
bound by the treaty in
A B
relation to other
reserving states, as G
modified by both of the
reservations between C
them
F
E D
by reservation

Creating Treaties
Concept of
Reservations
4. Meanwhile, non-
reserving states are
bound by the terms of
A B
the original treaty
G
C
F
E D
by reservation

Creating Treaties
Reservations
• Genocide Convention
Example of reservations: Burma

(Myanmar): Article 8 does not apply to it:
“Any Contracting Party may call upon the
…United Nations to take such action under
the Charter of the United Nations … for the
prevention and suppression of acts of
genocide or any of the other acts enumerated
Craig in article III.”
Forcese

Legal Effect of Treaties
Pacta Sunt Servanda

Article 26
Pacta sunt servanda
Every treaty in force is binding upon the parties to it and

must be performed by them in good faith.
Craig
Forcese

Internal Law
Article 27
Internal law and observance of treaties
A party may not invoke the provisions of its internal law as

justification for its failure to perform a treaty. …
Craig
Forcese

Application to Third Parties

Concept of pacta tertiss nec nocent nec prosunt:
Article 34: A treaty does not create either obligations or

rights for a third State without its consent.
Craig
Forcese


Exceptions: Third Party States can have rights
• Article 36: A right arises for a third State from a

provision of a treaty if the parties to the treaty intend
the provision to accord that right either to the third
State … and the third State assents thereto. Its
assent shall be presumed so long as the contrary is
Craig not indicated, unless the treaty otherwise provides.
Forcese


Exceptions: Third Party States can have obligations
• Where the treaty reflects customary international law

• Concept of an obligation erga omnes: an
obligation owed by a state to the international
community
Craig
Forcese


Exceptions: Third Party States can have obligations
• Even where the principle does not reflect customary

international law (and is a new legal principle), in limited
circumstances third parties may be bound:
Article 35: a non-party can only be bound by a treaty in
terms of duties if, first, the parties to the treaty intend for
Craig this duty to apply to the non-party and, second, the third
Forcese party expressly accepts this obligation in writing

Interpretation of Treaties
Good Faith, Ordinary Meaning
Article 31
A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light
of its object and purpose.
Craig
Forcese

Interpretation of Treaties
Where further assistance is required, may use travaux

preparatoires:
Article 32
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty … when the interpretation according to article
31: (a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable
Craig
Forcese

Invalidity and Termination of Treaties
1. Article 48 – error of fact

2. Article 49 – fraud
3. Article 52 – coercion in terms of use of force
4. Article 53 – conflict with preemptory norm
Craig
Forcese

Namibia Material Breach

Case
Article 60
(1971)
A material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its
operation in whole or in part
…
A material breach of a treaty, for the purposes of this
article, consists in:
(a) a repudiation of the treaty not sanctioned by
the present Convention; or
Craig (b) the violation of a provision essential to the
Forcese accomplishment of the object or purpose of the
treaty.

Supervening Impossibility
Article 61
A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from
it if the impossibility results from the permanent
disappearance or destruction of an object
indispensable for the execution of the treaty.
Craig
Forcese

Fundamental Changes (rebus sic stantibus)

Fisheries
Jurisdiction Article 62
Case
A fundamental change of circumstances … which
was not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from the
treaty unless:
(a) the existence of those circumstances
constituted an essential basis of the consent of
the parties to be bound by the treaty; and
(b) the effect of the change is radically to
transform the extent of obligations still to be
Craig
performed under the treaty.
Forcese
Reception of International Law

• Definition of “reception” system: A reception system
is a means of determining how rules of public
international law are applied, considered, or not, in
domestic law
• Where does the “reception” system come from:
US Determined by the domestic law of each state
• In Canada, our reception system is a creature of
the common law
Craig
Forcese

• Functioning of the “reception”: Two classical
approaches:
• Monist: automatic “incorporation”
• international law applies in the domestic
jurisdiction immediately and directly, without
US
any legislative or executive action
• common in Europe (civil law jurisdictions)
• Dualist: international law becomes domestic law
only through what’s known as a process of
“transformation” or sometimes “implementation”
Craig
Forcese

• Canada’s approach to “reception”: Hybrid model
• Customary international law: monist-like
incorporation into the common law of Canada
• Conventional international law: traditionally very
rigid dualist approach, requiring transformation by
US
legislative act
• Why Canada’s approach?: Constitutional reasons
• Treaty making is federal executive power: a
function of the royal prerogative
• Thus, two constitutional objections to “self-
executing” treaties:
• Separation of powers between Parliament and
executive
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• Division of powers between federal and
Forcese
provincial governments

• New uncertainty about Canada’s dualist approach
to treaties:
• Informal incorporation via canons of statutory
interpretation:
1. Where a treaty is implemented by a statute,
US
courts may look to the treaty to deal with any
ambiguity in that statute: National Corn
Growers
Craig
Forcese

to treaties:
interpretation:
2. Domestic law should be read, where possible,
US
so as not to violate international law:
Driedger: “The legislature is presumed to
respect the values and principles
enshrined in international law, both
customary and conventional. These
constitute a part of the legal context in
which legislation is enacted and read. In
so far as possible, therefore,
Craig interpretations that reflect these values
Forcese and principles are preferred.”

to treaties:
interpretation:
US
Bouzari (Ont. SCJ): “Parliament and
legislatures are presumed to respect the
values and principles enshrined in
international law, which constitutes part of
the legal context within which legislation is
enacted. However, if there is a conflict
between Canadian legislation and a norm
Craig of international law, then the legislation
Forcese continues in force.”

to treaties:
interpretation:
US
Baker (SCC): “the values reflected in
international human rights law may help
inform the contextual approach to
statutory interpretation and judicial
review“
Suresh (SCC): “international law rejects
deportation to torture … This is the norm
Craig which best informs the content of … s.7 of
Forcese the Charter”

• Reception under United States law:
• Conventional international law: US Constitution
declares, inter alia, treaties “the supreme Law of
the Land”
• US courts are bound to give effect to the
US international agreements of the United States,
except where these agreements are not self-
executing
• Agreement is not self-executing where:
1. The agreement specifies
2. The President or the Senate says so
3. Self-execution barred by separation of
powers
Craig
Forcese

Customary International Law
Definition:
Law that flows from state actions undertaken by
states believing that these actions are legally
obligatory
Two elements:
1. Consistent and general practice among states
2. Practice viewed and accepted as law by these states
(opinio juris)
Craig
Forcese

Customary International Law: State Practice
Two issues:
1. Generality: How many states need perform the action?
There is no precise formula, but the action should be
“general”, “widespread” or “settled”, particularly among
the states involved in the relevant activity
2. Uniformity: How consistent must states be?
Do not require perfect consistency. What is required is
conduct generally consistent with the alleged rule of
customary international law
Craig
Forcese

Customary International Law: State Practice
Example: Military and Paramilitary Activities in and

against Nicaragua
US actions contravened customary international

law:
• the practice of states in terms of
applying the rule said to be customary
international law need not be perfect
• if a state acts in violation of a rule and
then tries to justify its conduct with
reference to excuses and exceptions,
this recognizes the general validity of
Craig the rule
Forcese

Customary International Law: Opinio Juris
• A sense of legal obligation:

• a practice initially followed by states as a matter of
courtesy or habit may become law when states
generally come to believe that they are under a
legal obligation to comply with it
• Showing opinio juris:
• Sometimes, where a practice is very widespread,
opinio juris may be inferred from state acts or
omissions
• opinio juris often demonstrated by pointing to
official statements, diplomatic correspondence,
government press releases, submissions to
Craig national and international tribunals, speeches,
Forcese votes the General Assembly, etc.

Customary International Law: Opinio Juris
• North Sea Continental Shelf Case
• The passage of only a short period of time was

not necessarily a bar to the formation of a new
rule of customary international law
• However, in these circumstances, it was
indispensable that State practice during that
period, should have been both extensive and
virtually uniform
• The acts would also have to be motivated by a
sense of legal duty, not out of considerations of
courtesy, convenience or tradition
Craig
Forcese

Customary International Law: “Tipping Point”
• Pattern of state We We
action with opinio believe! believe!
juris We
believe!
• At some point – the A B We
tipping point – the
believe!
state action
becomes sufficiently
G
universal
C
• Then all states are
bound (subject to 2 F
exceptions we will
discuss) We
We E D believe!
State action believe!
Craig
Forcese Crystallized customary law

Is the Universal Declaration of Human Rights

Customary International Law?
Eleanor Roosevelt:
“In giving our approval to the declaration today, it is of
primary importance that we keep clearly in mind the
basic character of the document. It is not a treaty; it is
not an international agreement. It is not and does not
purport to be a statement of law or of legal obligation
obligation. It
is a declaration of basic principles of human rights and
freedoms, to be stamped with the approval of the
General Assembly by formal vote of its members, and
to serve as a common standard of achievement for all
peoples of all nations.”
Craig
Forcese


Today:
• Strong argument that some or even all of the UDHR is
customary international law:
• frequent reiteration of acceptance;
• virtually universal participation of states in other
international HR agreements;
• the adoption of human rights principles by states in
regional organizations;
• general support by states for United Nations
resolutions ;
• action by states to conform their national law;
Craig • invocation of human rights principles in national
Forcese policy, in diplomatic practice, in international
organization activities, etc..


Statement 95/1 Notes For An Address By The

Honourable Christine Stewart, Secretary Of State
(Latin America And Africa), At The 10th Annual
Consultation Between Non-Governmental
Organizations And The Department Of Foreign
Affairs And International Trade, Ottawa, Ontario,
January 17, 1995:
“…Canada regards the principles of the Universal

Declaration of Human Rights as entrenched in
customary international law binding on all
governments”
Craig
Forcese

Customary International Law: Impact of Dissent
• Special rules for dissenters: Concept of Persistent

Objector
1. The state must have objected to the rule in the
course of its formation
2. The state must be consistent in its objection
3. The state’s objections must be express
Craig
Forcese

Customary International Law: Impact of Dissent
• Special rules for dissenters: Concept of Persistent

Objector
Nuclear powers as persistent

objectors?
Arguments in the Legality of the
Use by a State of
Nuclear Weapons in Armed
Conflict Case (1996)
Craig
Forcese

Customary International Law: Regional Customary Law
• Customary principles that apply within a region and not

universally
Rights of Passage Case:

• Long history of practice
Asylum Case
• Peru not shown to have accepted practice
Craig
Forcese

Customary International Law: Treaties and Customary
Law
1. Conflicts between treaties and customary principles:

• Treaties prevail (subject to jus cogens norms)
2. Treaties as a source of customary international law:
• Codification of existing law (lex lata)
• Crystallization of emerging law or a catalyst for
new customary law (lex ferenda)
Craig
Forcese

Customary International Law: Jus Cogens and Erga
Omnes
• Jus Cogens:
• Peremptory norms of international law that trump
treaties (and customary practices) inconsistent
with them
• Natural law concept of a higher law
• Examples likely include: piracy, use of force, bar
on genocide, slavery or slave trade, and several
other human rights principles, etc.
Craig
Forcese

Customary International Law: Jus Cogens and Erga
Omnes
• Erga Omnes:
• A universal obligation all states owe the
international community and all states have
a legal interest in the protection of this right
• Israeli Wall Case
• All states under an obligation not
to recognize the illegal situation
created by the wall
• All states under an obligation not
to lend assistance in maintaining
the situation created by the wall’s
Craig construction
Forcese

Other Sources
Statute of the International Court of Justice, Article 38:

• The sources of international law that may be applied
by the ICJ are:
1. International conventions
2. International custom
3. General principles of law
4. Judicial decisions and the teachings of the most
highly qualified publicists
Craig
Forcese

Other Sources: General Principles
ICJ Statute, Art. 38: “the general principles of law

recognized by civilized nations”
• Debate over where these principles exist:

1. Principles that a large number (majority?) of states
apply in their domestic law?
• Roughly the approach followed in the South West
Africa Case:
• “Nearly every legal system” has trust-like
rules
2. Principles that exist already in international law?
Craig • Approach that doesn’t make much sense
Forcese

Other Sources: Writing of Jurists and Publicists
ICJ Statute, Art. 38: “subject to the provisions of Article 59,

judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary
means for the determination of rules of law”.
Art. 59: “The decision of the Court has no binding force

except between the parties and in respect of that particular
case.”
• These are a subsidiary means of determining the content

of international law
• Still, may prove very influential
Craig
Forcese

Other Sources: Unilateral Declarations
Legal Effect of Unilateral Promises
Nuclear Test Cases
• where it is the intention of the state

making the declaration that it should
become bound according to its terms,
the intention confers on the declaration
the character of a legal undertaking
• the state is then obliged to follow a

course of conduct consistent with the
declaration
Craig
Forcese

Public International Law: CML3231 University of Ottawa

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Public International Law

Public International law

Slides from Introduction through to Sources of

Many International Legal issues in the Kazemi

Main webpage: www.cforcese.ca

Courses and For-Credit Projects in International Law (2005 CCIL Survey)

Number of Courses/For Credit Projects 60

Two major sections to the course:

1. “Procedural” – To whom does

Main webpage: www.cforcese.ca

Defining International Law “textually”:

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

16th Century Jean Bodin, Six livres de la

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

Craig 1648: Treaty of

Defining International Law

Implications of the “textual” definition for a discussion of

Craig 1648: Treaty of

Defining International Law

Implications of the “textual” definition for a discussion of

Dean Acheson: “The hell with

Defining International Law

Implications of the “textual” definition for a discussion of

By this period, natural

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

American Exceptionalism 20h Century

Defining International Law

Implications of the “textual” definition for a discussion of

Non-European 20h Century

Defining International Law

Implications of the “textual” definition for a discussion of

United Nations: End of WWII

Defining International Law

Implications of the “textual” definition for a discussion of

Human Rights: End of WWII

Defining International Law

Implications of the “textual” definition for a discussion of

Defining International Law

Implications of the “textual” definition for a discussion of

“Pseudo-theories” of International Law

First theoretical hypothesis:

1. Evolution of International Law